Model Rules for Judicial Disciplinary Enforcement

(1) Judges. The commission has jurisdiction over judges regarding allegations that misconduct occurred before or during service as a judge and regarding allegations of incapacity during service as a judge.(2) Former Judges. The commission has continuing jurisdiction over former judges regarding allegations that misconduct occurred before or during service as a judge if a complaint is made within one year following service as a judge.

Appointment of Members. The commission shall have [12] members who shall be residents of {jurisdiction}. [4] members shall be judges of the intermediate appellate or trial courts appointed by the highest court; [4] members shall be lawyers admitted to practice in this state appointed by the {name of bar association}; and [4] members who are neither lawyers nor judges shall be public members appointed by the Governor.

Terms. Commission members shall serve for a term of [4] years and shall be eligible for reappointment to a second full term. Initial appointments shall be made so that the terms of one member in each of the three categories shall expire every year. A member appointed to a term of less than [4] years or to fill an unexpired term may be reappointed for two full terms. The commission members shall not be subject to removal except for cause. Removal shall be by the respective appointing authority.

Vacancies. A vacancy shall occur when a commission member ceases to be eligible to represent the category from which the member was appointed, or becomes unable to serve for any reason. An appointment to fill a vacancy for the duration of an unexpired term shall be made by the appropriate appointing authority. If a vacancy is not filled by the appointing authority within [60] days from the date on which the commission notified the appointing authority of the vacancy, the {chief justice of the highest court} shall appoint from the category to be represented a member within the next [10] days. That member will serve for the duration of the unexpired term.

Funding. The commission shall prepare its own budget, separate from the budget of any other agency or branch of government, and submit it to {legislature}.

CommentaryAlthough the commission may be established by the highest court or the legislature, it should be established by constitutional provision to make certain the commission is free from interference from any branch of government. The Rule, therefore, does not contain an establishment clause.

The commission has jurisdiction over the conduct of judges that is alleged to be in violation of the jurisdiction's code of judicial conduct or other applicable ethics code whether the conduct occurs on or off the bench and whether the judge is full-time or part-time. The commission has concurrent jurisdiction with the lawyer disciplinary agency over part-time judges who are lawyers because misconduct can occur in the part-time judge's capacity as a practicing lawyer and because a violation of the code of judicial conduct can also be a violation of the rules of professional responsibility. See Rule 6.A(1). See also Model Rules for Lawyer Disciplinary Enforcement, Rule 12.

The commission has jurisdiction over former judges to respond to complaints of misconduct that occurred before or during service as a judge if a complaint is brought within one year following the last day of the judge's service. This continuing jurisdiction ensures that judges cannot avoid judicial discipline by resigning before information regarding their misconduct was made known to disciplinary counsel and thereafter seek judicial office with no record of misconduct.

Obviously, the commission will exercise discretion in initiating an investigation of a former judge. Important factors the commission may consider are the seriousness of the complaint, the likelihood that the judge will return to judicial service and the extent to which the matter can and will be appropriately handled by the lawyer disciplinary agency.

Suspension or removal, as authorized under Rule 6.B, may be imposed to allow the record to reflect that the judge who resigned was determined to have engaged in conduct that warranted suspension or removal.

Procedures for handling allegations against members of the highest court are set out in Rule 26. Each category of commission members (judges, lawyers and public members) should be equally represented on the commission in order to balance viewpoints and to distribute appointing authority among the branches of government. To the extent practical, appointments should reflect the diversity of the state's population. Appointments should not be made on the basis of politics or ideology if the commission's independence is to be protected from the appearance of impropriety and outside interference. Members of the jurisdiction's highest court should not be commission members because they are members of the court that will decide the outcome of each disciplinary case. Incumbent and retired judges may be designated as judicial members.

Public confidence in the judicial discipline system is enhanced when the commission includes members of the public. Their participation provides the judicial discipline commission with an important perspective and avoids the appearance of a closed system. Many states have recognized the importance of public members to the maintenance of public confidence in judicial discipline by increasing the number of public members on their judicial discipline commissions.

The membership terms should be long enough to provide consistency but short enough to promote new perspectives. In jurisdictions where proceedings are infrequent, the terms may be made longer to ensure continuity and expertise.

To assure the commission's fiscal and operational independence, its necessary expenses should be provided for in a budget separate from that of the judicial branch. This protects the judiciary from the charge that it is withholding funds and thereby hampering the commission in investigating the conduct of its members. The commission should be authorized to prepare and submit its budget independently. It should not have to rely on any other agency for this essential function.

If a jurisdiction is to have a judicial system that has the confidence of the citizens, it must have a judicial discipline system that is independent and effective. The only way to achieve such a discipline system is to fund it adequately so that budgetary constraints do not inhibit the investigation of complaints and presentation of formal charges.